Parliamentary Privilege Revisited

According to the Privileges Committee, the law as established by this judgementshows that effective repetition could extend beyond defamation to obscenity laws,contempt of court, and incitement to racial disharmony and so on. Parliamentarystatements are accorded absolute privilege with respect to defamation actions, in theDefamation Act 1992, s 13(1).If the proposed amendment were made only MPs would be protected by it. CurrentlyMPs are forced to restrain their enthusiasm outside the confines of Parliament, but notwithin. If they defame a member of the public within the chamber of Parliament avictim’s only recourse is the 1996 procedure, which allows them to enter a statementin the parliamentary record (Standing Orders 160, 163). While Speakers’ rulings onun-parliamentary language provide a considerable degree of protection for Membersof Parliament, non-Members are not protected at all within Parliament. If theproposed amendment were passed the former would have more protection, at theexpense of the latter.The main effect would be to confer the absolute privilege that presently attaches toproceedings in Parliament on individual Members of Parliament. The amendmentwould apply to defamatory statements affirmed, adopted or endorsed outside theHouse, and also to contempt of court and other forms of liability.The Privileges Committee does not have an active role in punishing Members ofParliament for using parliamentary privilege improperly. Indeed, it does not inhibittheir freedom of action within the Chamber. Rather than an expansion of theprivileges of Members of Parliament it would be desirable to clarify that this privilegeis limited to conduct within Parliament, and that even there it is qualified by a need toaccount to the Privileges Committee, which ought to be required to hear complaintsfrom non-Members alleging that a Member has harmed their reputation.It might not be desirable to allow class actions, or require the Privileges Committee tohear claims that parliamentary privilege had been misused for personal gain, or inbreach of, inter alia, the Human Rights Act. This could expose Members ofParliament to malicious complaints that could inhibit free speech. But where anindividual is named in Parliament the Privileges Committee should be required tohold the Member to account if the allegation made is shown, to the satisfaction of thePrivileges Committee, to be inappropriate.To adopt this proposal would have adverse consequences on three matters ofprinciple. The privilege in relation to defamation was a collective privilege of theHouse, not personal to individual MPs. Privilege was a defence in defamation in allother fields is qualified, but would become absolute for MPs. The courts have held thedoctrine of effective repetition to not be to question the proceedings of Parliament. Toexclude the jurisdiction of the courts in this manner would be to affect theconstitutional balance between the courts and the legislature.